Legal Discourse across Cultures and Systems · equivalence and conceptual analysis for the purposes of lexicography. Her latest work is Legal Translation and the Dictionary (2004)

Edited by

Vijay K. Bhatia

Christopher N. Candlin

Jan Engberg

with the assistance of

Jane Lung

Legal Discourse acrossCultures and Systems

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Hong Kong University Press14/F Hing Wai Centre7 Tin Wan Praya RoadAberdeenHong Kong

© Hong Kong University Press 2008

Hardback ISBN 978-962-209-851-0Paperback ISBN 978-962-209-852-7

All rights reserved. No portion of this publication may be reproducedor transmitted in any form or by any means, electronic or mechanical,including photocopy, recording, or any information storage or retrievalsystem, without prior permission in writing from the publisher.

British Library Cataloguing-in-Publication DataA catalogue record for this book is available from the British Library.

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Printed and bound by Pre-Press Limited, Hong Kong, China.

Hong Kong University Press is honoured that Xu Bing, whoseart explores the complex themes of language across cultures,has written the Press’s name in his Square Word Calligraphy.This signals our commitment to cross-cultural thinking andthe distinctive nature of our English-language books publishedin China.

“At first glance, Square Word Calligraphy appears to be nothingmore unusual than Chinese characters, but in fact it is a newway of rendering English words in the format of a square sothey resemble Chinese characters. Chinese viewers expect tobe able to read Square Word Calligraphy but cannot. Westernviewers, however are surprised to find they can read it. Delighterupts when meaning is unexpectedly revealed.”

— Britta Erickson, The Art of Xu Bing

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Acknowledgements vii

List of Contributors ix

Introductory 1

1 Concepts, Contexts and Procedures in Arbitration Discourse 3Vijay K. Bhatia, Christopher N. Candlin and Jan Engberg

Perspectives and Issues 33

2 Mixing Legal Cultures in International Arbitration: 35The Iran-United States Claims TribunalPeter Malanczuk

3 Hybrid Dispute Processing in Japan: 53Linking Arbitration with ConciliationYasunobu Sato

4 Confidentiality in Arbitrations 75Christopher To

5 International Commercial Arbitration in India: 109A Study of Discursive PracticesKusum Dhanania

Contents

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vi CONTENTS

Comparative Analysis and Interpretation 125

6 Interpretation across Legal Systems and Cultures: 127A Critical PerspectiveVijay K. Bhatia and Christopher N. Candlin

7 Vagueness and Indeterminacy in Law 145Jan Engberg and Dorothee Heller

8 Powers of the Court in the Malaysian Arbitration Act 169Azirah Hashim

9 Discourse Systems in English Arbitration Awards 181Girolamo Tessuto

10 Rhetorical Strategies in Arbitration Law 199Anna Trosborg

11 Cultural Constraints on Arbitration Discourse 221Maurizio Gotti

Applications and Implications 253

12 Arbitration in Sport 255Paola Evangelisti Allori

13 Implications of Legal Globalisation for Brazilian 275Legal PracticeCelina Frade

14 Translation in International Arbitration 291Susan Sarcevic

15 Translating Terminology in Arbitration Discourse 309Marta Chroma

Index 329

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ACKNOWLEDGEMENTS ix

Vijay K. Bhatia is Professor of English at the City University of HongKong. His main research interests are genre analysis of professionaldiscourse, including legal, business, newspaper, advertising and otherpromotional genres; ESP (theory and practice); simplification of legal andother public documents; cross-cultural and disciplinary variation inprofessional discourse. He has published in many international journalsin these areas. He has worked on a number of projects, the most recentof which is ‘Generic Integrity in Legal Discourse in Multilingual andMulticultural Contexts’, an international project in which 15 countriesparticipated. He is also on the editorial advisory boards of severalinternational journals. His book on Analysing Genre: Language Use inProfessional Settings (1993) is widely used by researchers interested ingenre theory and practice. His more recent book Worlds of Discourse(2004) has appeared in the Advances in Applied Linguistics series.

Christopher N. Candlin is Senior Research Professor in the Departmentof Linguistics of Macquarie University, Sydney. He was the FoundationExecutive Director of the Australian Government’s National Centre forEnglish Language Teaching and Research from 1987 to 1998, and alsoestablished the Research Centre in Language in Social Life, also atMacquarie. He has held Professorships at Lancaster, UK, the CityUniversity of Hong Kong, and the UK Open University, and holdsHonorary Professorships at the Universities of Lancaster, Nottingham andCardiff in the UK. He currently holds a Leverhulme Trust VisitingResearch Professor in the Centre for Health Communication Research atCardiff University. His current research is in the fields of professional

15Contributors

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x CONTRIBUTORS

communication, particularly in healthcare and law, and its application toprofessional development and practice, and in disciplinary discourses inthe academy and their interface with the world of work. He is a memberof the editorial boards of several international journals, including Text &Talk, Journal of Sociolinguistics, Language Awareness, Journal of Englishfor Specific Purposes, Language Teaching Research and Communication inMedicine, and co-edits (with Srikant Sarangi) the new Journal of AppliedLinguistics. From 1996 to 2002, he was President of the InternationalAssociation of Applied Linguistics.

Marta Chroma, Head of the Foreign Language Department of the CharlesUniversity Law School in Prague, teaches legal linguistics and legaltranslation to both students of law and students of linguistics. Her researchis based upon comparative study of the Czech laws and language on theone hand and the Anglo-American system of law and legal English onthe other. She focuses on the issues of linguistics and legal interpretationof legal texts for the purposes of translation, as well as issues ofequivalence and conceptual analysis for the purposes of lexicography. Herlatest work is Legal Translation and the Dictionary (2004).

Jan Engberg is Associate Professor in the Faculty of Language and BusinessCommunication of the Aarhus School of Business, Denmark. His PhDthesis was a contrastive study of German and Danish civil court judgmentswith relevance for special genres, cognitive aspects of domain specificdiscourse and communication in LSP settings. The focus of his researchis on communication and translation in the field of law. He is co-chair ofthe section on LSP communication of the German Association for AppliedLinguistics (GAL) and co-editor of the international journals Hermes andLSP & Professional Communication.

Paola Evangelisti Allori is Professor of English and Director of theLanguage Centre at the University for Sport Science (IUSM) in Rome.Her main research interests focus on the comparative description ofEnglish, particularly the uses of English in different academic andprofessional settings. She has published extensively in the fields of cross-disciplinary and cross-cultural discourse analysis and of contrastiverhetoric. Among her recent publications are Academic Discourse in Europe(1998), English in Academic and Professional Settings (2002, co-edited withE. Ventola), Language and Legal Concepts across Systems and Cultures(forthcoming, co-edited with V. Bhatia and C. N. Candlin).

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CONTRIBUTORS xi

Celina Frade is a Lecturer of English for Specific Purposes in theMultidisciplinary Institute, Rural University of Rio de Janeiro, and has aPhD in Linguistics. She has done extensive research mainly on legalEnglish, and published several articles on the topic. She has also taughtlegal English reading skills to Brazilian legal professionals. She is currentlyworking on the design of ESP courses for other academic and professionalareas for the undergraduate and postgraduate levels at the institute.

Maurizio Gotti is Professor of English Linguistics and Director of theLanguage Centre at the University of Bergamo. He is currently Presidentof the Italian Association of University Language Centres and Director ofCERLIS, the research centre on specialized languages based at theUniversity of Bergamo. From 1999 to 2001 he was President of the ItalianAssociation of English Studies. From 2000 to 2004 he was President ofthe European Confederation of University Language Centres. His mainresearch areas are the features and origins of specialized discourse, andhis publications include Robert Boyle and the Language of Science (1996),Specialized Discourse: Linguistic Features and Changing Conventions (2003),and Investigating Specialized Discourse (2005). He is a member of theeditorial board of national and international journals, and edits theLinguistic Insights series.

Azirah Hashim is the Dean of the Faculty of Languages and Linguisticsand a Professor in the English Language Department of the University ofMalaya, Kuala Lumpur. Her research interests include genre analysis,academic and professional discourse and varieties of English. She iscurrently involved in two international projects, ‘World Englishes andMiscommunication’, and ‘Advertising in Asia’, and is the Malaysianrepresentative for the English in Southeast Asia Conference series.

Dorothee Heller is Associate Professor of German Linguistics at theUniversity of Bergamo. Her research is mainly concerned with genreanalysis, pragmatics and historiography with special attention to LSP, andher publications include Wörter und Sachen: Grundlagen einerHistoriographie der Fachsprachenforschung (1998). Her current researchfocuses on academic discourse from a comparative perspective (Germanvs. Italian).

Kusum Dhanania, the National Academy of Legal Studies and Research(NALSAR) University of Law, Hyderabad, India. She has co-authored a

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xii CONTRIBUTORS

paper with Sandhya Gopakumaran, “Marwari business discourse: Ananalysis” (2005), published in Asian Business Discourse(s) Part I (1995).

Peter Malanczuk, is Dean and Chair Professor in the School of Law of theCity University of Hong Kong, and Founding Director of the WTO Lawand Dispute Resolution (MAArbDR) Centre. He is also Honorary Professorin several universities: Peking University, China University of PoliticalScience and Law, Nankai University, Shenzhen University and NanjingUniversity. Previously he has been Distinguished Visiting Professor at HongKong University (2001); Chair of International Law and Founding Directorof the GLODIS-Institute (Institute of Globalization, International EconomicLaw and Dispute Settlement), Erasmus University Rotterdam (1997–01);Chair of International Law and International Relations, University ofAmsterdam (1990–1997); and Legal Assistant of the President of the Iran-United States Claims Tribunal in The Hague (1986–89). He has also beenVisiting Professor at several universities, including Michigan Law School,University of California, Berkeley and Moscow State University. He haspublished extensively on general international law, international economicand trade law, state responsibility, international arbitration and disputesettlement, environmental law, human rights, international criminal law,telecommunications and space law, European Community law, andcomparative constitutional and administrative law.

Yasunobu Sato is a Professor of the Graduate Program of Human Securityand the Graduate School of Arts and Sciences at the University of Tokyo.He was admitted to the Bar of Japan in 1984. He has been the Attorney-at-law, Sato Law Office, Takahashi Law Office (1984–1988); ForeignAssociate, United Nations Centre for Human Rights (Geneva); Cleary,Gottlieb, Steen & Hamilton (New York, Washington D.C.); Loef ClaeysVerbeke (Amsterdam, Brussels) (1988–1991); Legal Officer, UnitedNations High Commissioner for Refugees (UNHCR) Canberra, Australia);Human Rights Officer, United Nations Transitional Authority in Cambodia(UNTAC) (1991–1993); and Senior Associate, Mitsui, Yasuda, Wani &Maeda, 1993–1999 (1995–1997, seconded to Counsel, European Bankof Reconstruction and Development [EBRD]).

Susan Sarcevic is Professor in the Faculty of Law of the University ofRijeka (Croatia) where she teaches legal English, legal German and EUterminology. She has published extensively on legal translation, legallexicography and multilingual communication in the law (in English,

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CONTRIBUTORS xiii

German and Croatian) and has been invited to lecture on legal translationworldwide. She is a translator of legal texts and reviser of legal texts inEnglish.

Girolamo Tessuto is a Lecturer in English Language in the Law Facultyof the University of Naples II. He has extensive experience in languageteaching for specific purposes at both undergraduate and postgraduatelevels, and professional experience at the European Parliament. His mainresearch interests are in the fields of ESP (legal language in a variety ofapplication) and applied terminology and translation studies. Besidesresearch articles in the same fields, his recent publications include Discorsogiuridico e repertorio lessicale del diritto penale di Common Law, (2001);The Language of Common Law Made Simple (2002); English for Law MadeSimple (2003).

Christopher Wing To is Adjunct Professor of Law and Engineering atthe City University of Hong Kong and is currently the Secretary Generalof the Hong Kong International Arbitration Centre. He is a Panel Member(Arbitrator) at several institutions: the International Arbitrators of theAustralian Centre for International Commercial Arbitration, the KoreanCommercial Arbitration Board, the China International Economic TradeArbitration Commission, the Kuala Lumpur Regional Arbitration Centreand the Singapore Institute of Arbitrators. He is a Fellow of the CharteredInstitute of Arbitrators and a Fellow of the Hong Kong Institute ofArbitrators. He was appointed Chairman of the Inter-Pacific BarAssociation Dispute Resolution and Arbitration Committee in 2006.

Anna Trosborg is Professor of English and Reader in BusinessCommunication at Aarhus School of Business, Denmark. She has beenconducting extensive research on professional discourse since 1989. Herrecent academic publications are in the fields of L2 teaching and learning,business pragmatics, genre analysis, legal speech acts, and businesscommunication. She is currently teaching intercultural businesscommunication and negotiation.

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CONCEPTS, CONTEXTS AND PROCEDURES IN ARBITRATION DISCOURSE 3

HISTORY AND BACKGROUND

Although legal language has long been the focus of attention for legalphilosophers and sociologists (Austin, 1962; Mellinkoff, 1963; Searle,1965, Allen, 1957; Atkinson and Drew, 1979; to mention only a few), itsattraction for linguists and discourse analysts has been of relatively recentorigin. Legal language started attracting somewhat adverse publicity inthe mid-seventies, when campaigns for reforms in legislative expressiongained momentum, especially in the USA and the UK (see RentonCommittee Report, 1975). Popularly known as the Plain EnglishCampaign, it brought into focus the question of incomprehensibility oflegal expression from the point of view of not only the ordinary peoplebut also of legislators. In the last two decades legal writing has assumedunprecedented significance not only for linguists, language and legaleducators, but also for sociologists, critical theorists, writing specialists,translators and social reformers. In particular, there have been a numberof studies focusing on the construction, interpretation, use andsimplification of legal documents from the perspective of a variety of legalsystems and languages. The works of Bhatia (1982, 1983, 1987, 1993)on the analysis of legal documents; Candlin and Maley (1994), andCandlin and others (1987, 1995) on client consultation, arbitration anddispute resolution; Charrow and Charrow (1978) on thecomprehensibility of legal documents; Fredrickson (1995) on the analysisof Swedish and American legal language; Gunnarsson (1984) on thecomprehensibility of legal Swedish; Maley (1985, 1987, 1994) on judicialand legislative discourse; and Trosborg (1991, 1997) on pragmatic aspects

1Concepts, Contexts and Procedures

in Arbitration Discourse

Vijay K. Bhatia, Christopher N. Candlin and Jan Engberg

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4 VIJAY K. BHATIA, CHRISTOPHER N. CANDLIN AND JAN ENGBERG

of legal discourse and legal translation, are only a few of the pioneeringexamples of recent work of interest in legal discourse.

Accompanying this is a valuable and interesting body of researchrelated to the simplification of legal documents. There are two importantapproaches to reforms in legal writing. The first approach introducessimplification in legal writing as Plain English, where it is widely believedthat legal documents can be expressed more or less in ordinary everydayEnglish. Eagleson’s work (1991) on the use of Plain English is insightfuland encouraging. He has been able to convince a number of stakeholdersin legal affairs, including government departments and legal firms,especially in Australia, about the possibility of achieving a reasonably highdegree of legal specification without the excessive use of complexgrammatical devices. Unfortunately, however, this view is not shared bya wide majority of legal professionals from the drafting community(Renton Committee Report, 1975, Thomas, 1985), who claim that it isimpossible to achieve the required specification of scope in legalexpression without the use of a complex array of qualifications and othergrammatical resources. Bhatia (1982, 1993), in this context, proposed adifferent approach to rewriting legislation known as ‘easification’ of legaldocuments, where it is claimed that although it is possible to some extentto avoid unnecessary use of complex contingencies without sacrificingthe essential integrity of the legal documents, it is not always possible towrite legal documents in ordinary English without sacrificing a desirableand detailed specification of legal scope, especially if these documentsare required to serve legislative purposes in the context of legal systemsin western democracies. He suggests the use of a variety of ‘easificationdevices’ without compromising the essential integrity of the legislativegenre to make them more readily accessible to its users, which mayinclude lay readers as well as legislators.

There is also a vast body of literature on interpretation of statutesand other forms of legislation (Bennion, 1997, Cross, Bell and Engle, 1995,Dickerson, 1975, Eskridge, 1994, Evans, 1990, Gifford, 1990, and others).Some of them codify criteria for the interpretation of statutes, oftenincorporating linguistic aspects of statute construction and interpretation(Bennion, 1997), sometimes based on rules of logic, syntax, andpunctuation. However, the principles of statutory interpretation discussedthere do not materially differ from those applicable to the interpretationof documents generally. The most common treatment is based on the useof deductive reasoning, interpretation of individual words and phrases,or on the elaboration of meaning of words and phrases. There is very

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little available on the lexico-grammar of legislative writing. The mostinteresting work on legal interpretation from the point of view of differentlegal systems comes from MacCormick and Summers (1991). Theycompare statutory interpretation based on a set of common questionsapplied to nine different countries. The questions addressed interpretativeissues such as the general origins of interpretation within legal systems,statutory gaps and gap-filling, the role of constitutional law, the effect ofstatutory provisions prescribing interpretative method, and the nature ofcollisions between statutes and other norms, often discussing how theyare resolved. However, it is interesting to note that in the context of sucha diversity of systems, MacCormick and Summers put forward a universalthesis that amounts to claiming that all systems share a common core ofmajor types of arguments which provide good reasons for interpretativedecisions. They also point to major variations in types of arguments andpatterns of justification in the different systems, including differences instructure, logic, and style of the opinions in the higher courts. The authorsalso explain these variations are rationally grounded in political,institutional, cultural, and other factors present in the systems.

All these studies are insightful and stimulating for those interestedin the construction, interpretation, use, and rewriting of legal discourse.However, most of these studies focus on the use of English in variouslegal genres and, as a result, on contexts which are essentially those ofcommon law countries. There are only a few studies which have focusedon languages and legal systems other than English. Even then, most ofthese have so far invested their efforts in the analysis and use of legallanguage embedded in specific legal cultures and essentially monolingualsettings.

In recent years, however, we have seen an unprecedented increase inthe dismantling of socio-cultural, disciplinary and national barriers,especially in the context of co-operation and collaboration in internationaltrade and business. Creation of massive international free trade zones,and the opening up of major political economies in the last few yearshave accelerated moves towards intense competition to captureinternational markets and the merger of corporations to form hugemultinational conglomerates. With the increase in these and similar othertrends towards a globalisation of socio-cultural, business andcommunication issues, law is fast assuming an international perspectiverather than retaining a purely national concern. An excellent example ofthis trend became visible in the early nineteen eighties when most of thecountries of Western Europe combined to create a common European

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market. The need for a common European legal framework in order tointroduce legislative instruments and the necessity to translate such legalinstruments in all the languages has become a serious issue (Lang, 1989).The task was much more complex than simply creating a new legislativeframework because this newly created instrument was meant to beinterpreted within the contexts of a diversity of individual legal systemsand languages of the member countries of western Europe, especiallywhen one needed to interpret issues such as those of human rights,international agreements and contracts, freedom of speech, freedom oftrade, protection of intellectual property, all of which have very strongsocio-political and cultural constraints.

More recently, especially in context of the return of Hong Kong tothe People’s Republic of China and the creation of the SAR, the need tointerpret one set of laws in the context of the other has become important.Whenever two languages and/or legal systems come in contact with eachother, problems in the interpretation of statutes and regulations and inthe translation of legal intentions from one language and/or one systemto the other assume serious importance. As one example, in the periodsimmediately preceding and following the handover of the territory of HongKong, there were several cases where sections of the Basic Law wereconstrued and interpreted rather differently by the parties concerned. Theunderlying issues in relation to statutory interpretation in many of thesecases could either be traced back to differences between two draftingsystems, which may include differences in languages, legal systems, orother socio-cultural factors. In the existing research on legal language,however, there has been very little attention paid to issues that arise as aresult of differences in legal or socio-cultural systems. For example, wehave some indication of how legal Danish is constructed, used andinterpreted within the Danish legal system; we have some idea of howSwedes write their laws and use legal Swedish to negotiate justice in thecourts of law in Sweden; we have considerable understanding of how legalEnglish functions in the countries of the Commonwealth; but we knowvery little about how a particular legal language, be it English, Danish orChinese, would handle a legal issue when it arises as a result of aninteraction with another legal system, language or socio-culturalexpectations. How, for example, should the issue of intellectual propertyprotection law be construed, interpreted and used in Hong Kong SARand the UK? To what extent and by what linguistic means should thetwo countries specify the scope of legislation? To what extent will thescope be constrained by the legal system in which it will be established?

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To what extent will it be constrained by the linguistic resources availablein the language in which it is written? Issues like these are crucial forthe construction, interpretation and use of legal language across languagesand legal systems. These issues are also extremely relevant when onetranslates legal expressions from one language or legal system into another.A number of these issues have been identified by several senior solicitorsin Hong Kong (see Candlin and Bhatia, 1998).

A number of questions arise from the above review of legal discourse.One of the main questions is: what exactly is legal about legal language?More specifically, what happens to legal discourse when it is constructed,interpreted and used across linguistic, national, socio-political, cultural,and legal systems? In what way is generic integrity of legislative statementsand other legal documents maintained in multi-lingual and multiculturallegal contexts? What happens when the same rule of law is applied acrosslegal systems?

This volume is an attempt to address some of these questions bycontributing to the basic knowledge of legal language typically used ininternational commercial arbitration, and to suggest implications of thisfor legal practice, legal translation, and legal practitioner training. Thediscussions in this volume constitute one of the major outcomes of aninternational project, ‘Generic Integrity in Legal Discourse in Multilingualand Multicultural Contexts’. The project investigated this challenge byfocusing on international arbitration laws seen from the standpoint of anumber of international contexts. As part of the project, academics andpractitioners from, or focusing on, Brazil, the Czech Republic, the People’sRepublic of China, Denmark, Finland, France, Germany, Hong Kong,India, Italy, Japan, Malaysia, South Africa, and the United Kingdom havebeen involved in parallel investigations into such processes within theirrespective jurisdictions for several years. These international teams ofresearchers have also focused on analyses across their own jurisdictionsin order to identify common elements in arbitration legislation as theyare constructed and interpreted across multilingual and multiculturalcontexts. The research is based not only on the analysis of the texts ofthe legislation alone, but also on the factors shaping such constructionsand interpretations. In the process, differences characteristic of, orresulting from the peculiarities of historical, socio-political, cultural,economic and legal developments in the sites concerned have also beentaken into account.

The motivation for this research derived from the increasinginternational need for accurate and authoritative translation and use of

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legal documents across languages, translations which would both preservethe integrity of the source documents and would provide a robustrepresentation of the legislation in question. Such translations would alsoneed to convey appropriately in both languages the pragmatic andfunctional intentions and implications of the original document inquestion, addressing such issues as of degree of qualification, specificationof scope, issues of closed versus open-endedness and other mattersconcerned with complex contingency. Although all legal documents inall languages address these issues, they do so in distinctive and also inoverlapping ways, partly as a consequence of the different languages inwhich they are constructed, partly because of the socio-political andcultural differences of the societies in question and of their legal systems,and partly as a consequence of the ways in which these systems constructand interpret issues such as legal authority, agency and responsibility.The discourse of law, in particular, relating to contract and arbitration,has considerable contemporary relevance in the context of international,inter-linguistic and inter-cultural social actions in an increasinglyglobalized economy. This comparative legal and commercial interest ismatched by a parallel linguistic and discourse analytical interest in therelationship between language and globalisation. A number of diversecommunities of practice, such as discourse analysts, commercialconsultants, legal trainers, translators, and applied researchers inprofessional and institutional communication, especially in the field oflegal writing and languages for specific purposes, undoubtedly exercise akeen interest in legal discourse across disciplines, languages, cultures, andlegal systems.

This introductory chapter has three major objectives: firstly, toidentify and bring into focus some of the main concepts and constructs inthe field of comparative legal discourse; secondly, to identify andcharacterise the main contexts, socio-political, institutional, professional,in terms of which comparative legal discourse can be studied, and wheresuch study is practically relevant; and finally, to identify and outline anintegrated set of appropriate discourse analytical and other methodologicalprocedures that enable the grounded study of legal writing so as to providesubstantive, relevant, and usable accounts of value to practitioners invarious fields.

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LEGAL DISCOURSE

Legal language plays an important role in the construction, interpretation,negotiation and implementation of legal justice. Through a limited set oflegal genres an attempt is made to create and maintain a model world ofrights and obligations, permissions and prohibitions. Although, inprinciple, this model world is required to be consistent with the visionthat individual states or nations have of the society, in practice, it is oftenconstrained by the changing socio-political realities of the specific nations,legal systems, and cultures. Therefore, to regulate the real world of humanbehaviour as and when it is found to be inconsistent with the model world,these rules and regulations are judiciously interpreted and applied througha system of courts to negotiate and invariably enforce desired behaviour(Bhatia, 1982). The so-called model world is thus created by imposingrights and obligations, permissions and prohibitions through legislation,and this, in most western democratic systems, is seen as the will of theelected representatives of the people in the parliament.

This view of law and legal justice requires most genres, especiallylegislation, to be written “with mathematical precision … to provide acomplete answer to virtually every question that can arise” (Sir CharlesDavis in Renton Committee Report 1975). This requirement gives legalgenres their unique integrity, often characterized in terms of their use oflexico-grammatical and discoursal resources that are rarely found in otherdisciplinary or professional genres. As pointed out in Bhatia (1982, 1993),legal genres are characterized by their use of a complex range ofqualifications often strategically positioned at syntactic points where theyare unlikely to attract any ambiguous or unintended interpretation, thusmaking them clear, precise, unambiguous and all-inclusive at the sametime (see Bhatia, 1982, 1993, for a detailed discussion). However, thereare several other factors that make this claim somewhat problematic: thelegal system, the language, the socio-political and the cultural contextwithin which a specific instance of legal discourse is embedded. One ofthe main issues arising from this variation is the extent to which theintegrity of a specific legal genre is likely to be maintained when it crosseslinguistic, socio-political, cultural or legal boundaries in the present-dayglobal business, trade or other professional environment. These issues ofdiversity in construction and interpretation of legal discourse acquire amore serious importance when we see law losing its jurisdictionalcharacter in this rapidly changing corporate world of international tradeand commerce.

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LEGAL DISCOURSE IN INTERNATIONAL ARBITRATION:THE PROJECT

In order to investigate what happens to the same legislative genre whenit is written, interpreted, and used across linguistic, socio-political, culturaland legal jurisdictional boundaries, a group of researchers from more thanten countries representing various jurisdictions, languages, cultures andsocio-political backgrounds collaborated on an international project1 tostudy international arbitration laws written, interpreted and used invarious jurisdictions, including Brazil, China, Hong Kong, India, Japan,Malaysia, and a number of European countries, such as Denmark,England, Finland, France, Germany, and the Czech Republic (for detailssee the website http://gild.mmc.cityu.edu.hk/) The investigation involvedthirteen distinct languages, such as English, Chinese, Czech, Danish,Finnish, German, Hindi, Italian, Japanese, Hong Kong, Bahasa Malaysia,Portuguese and Czech, which drew upon several distinct legal systems,such as the common law, the civil code, Islamic law, and a number ofothers in use in countries such as Brazil, Japan, Denmark, Finland, andthe Czech Republic.

There appeared to be considerable overlap in all the internationalarbitration laws in different countries as they were invariably adopted fromthe UNCITRAL Model Law (1985) provided by the United NationsOrganization or from the Geneva Convention of 1962. The main objectiveof the international project was to develop a basic understanding of legaldiscourse across languages, socio-political and cultural boundaries, andlegal systems. However, its primary focus was on the investigation ofgeneric integrity of legislative documents used in multinational andmultilingual contexts so as to enhance our understanding of theconstruction, interpretation and use of legislative discourse in internationalcontexts, and to assist legal writers, translators, and practitioners of lawin functioning more effectively internationally. In order to investigate thegeneric integrity of legislative documents, the investigation drew on amultidimensional and multi-perspective approach to research, one whichrequired the following tasks.

1. Documentation of background reports on individual countries, inparticular about their legal systems, focusing especially on the way

1 RGC (HKSAR) funded Cerg Project (No. 9040474) on ‘Generic Integrity of Legal Discoursein Multilingual and Multicultural Contexts’.

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laws are written, interpreted, and used, choice of language(s),historical traditions in arbitration and conciliation, etc, in each ofthese countries. These documentations were meant to be used as abroad and rich context within which one could explain some of thefindings of the analyses of not only the construction and interpretationof arbitration laws, but also the processes and procedures used inspecific arbitration cases (See Bhatia, Candlin, Engberg, and Trosborg,2003).

2. Analyses of the linguistic and discoursal properties of various subsetsof international arbitration laws from different languages, languagevarieties, cultures and legal systems, focusing, in particular, on thenature and use of qualifications, specification of scope, all-inclusiveness, expressions of contingency, intertextuality andinterdiscursivity, and degrees of control and transparency. Theanalyses offer a grounded account of the drafting and interpretativepractices within specific contexts by focusing on a set of critical andrelevant sites of engagement, incorporating specific moments ofapplication of the laws under investigation, especially where certainaspects of these laws are invoked during the negotiation of justice(see Bhatia, Candlin and Gotti, 2003 for the analyses of arbitrationlaws from European countries, and Bhatia and Engberg, 2004 for theanalyses of other international laws from outside Europe).

3. Comparing country specific laws with one another taking as a basisthe UNCITRAL Arbitration Model Law provided by the UnitedNations, focusing in particular on areas which have been constructeddifferently in an attempt to offer explanations and implications ofsuch divergences, often taking evidence from some of criticalagreements, contracts, cases, and judgments in internationalarbitration. The present volume includes much of the comparativeanalysis of international arbitration laws.

The comparative analyses in the present volume based on a range ofarbitration laws also attempt to provide some discussion of the issue ofgeneric integrity of legal discourse in multilingual and multicultural legalcontexts, and perhaps offers some answers to the question: “What happensto legislative discourse when it is constructed, translated, interpreted, used,or exploited across national, legal, socio-political, economical, and culturalboundaries”? Explanation of some of the issues is offered by reference tosocio-cultural, economic and political, linguistic and legal factors basedon the background studies of the legal systems of these two countries,

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and also on the expert reactions and commentaries by legal specialists,both from the academy and from legal practice.

In addition to the comparative and contrastive analyses of alternativetextualizations, the chapters in this volume also provide useful insightsfor applications in translation of legal genres, especially with regard tothe degree to which generic integrity is maintained in the practice oftranslation and legal drafting of legislative documents. In doing so itprovides guidelines for the training of legal draftspersons and translators,with particular reference to inter-cultural sensitivity, with the aim ofensuring greater international acceptability of such translated and draftedtexts. In brief, the volume is an attempt to test the validity of the genericintegrity hypothesis, focusing in particular on the necessary interplaybetween genre, linguistic realisation and the underpinning legal systemsand philosophies and practices of law in different societies. However,before taking up some of the main issues identified and discussed in thisvolume, we introduce some of the main findings in this area. These havebeen raised in earlier volumes published by the project and form the basisof some of the major issues emerging from the analyses of arbitrationlaws from a number of national and legal contexts (Bhatia, Candlin,Engberg and Trosborg, 2003; Bhatia, Candlin, and Gotti, 2003; Bhatiaand Engberg, 2004; and Bhatia, Engberg, Gotti, and Heller, 2005)

As we indicated earlier, one of the main objectives of the project hasbeen to investigate generic integrity, by which we mean stability in thecharacteristics of a genre across languages, socio-political contexts, andcultures. In short, to explore the differences and similarities to be foundwhen arbitration laws from different countries are compared. How high,for example, is the proportion of overlap, thus indicating a high degreeof generic integrity across cultures?

In the project, the cross-cultural investigation of genres connectedto arbitration has been carried out in two different ways. One way hasbeen to examine texts written in English, but which originate fromcultures where English is not the national legal language, and to comparethe results of this scrutiny with a text written originally in English, thatis, the UNCITRAL Model Law, 1985. A second direction has been to lookat arbitration texts written in official legal languages other than Englishand once again to compare these with the above-mentioned texts writtenoriginally in English. In both cases, the focus has been on cross-culturaldifferences and similarities. In the second group, differences andsimilarities between legal cultures may be observed in an unmediated wayas texts are written directly in the language of the relevant legal cultures

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but where results may be influenced by systematic differences betweenthe languages. In the first group, on the other hand, differences andsimilarities must be observed through the filter of translation (as the textsare written in a language different from the national language of theculture). Here it is possible to compare the results more directly as thelanguage used in all the investigated texts is the same. So, both approacheshave their advantages and disadvantages. Put together, they give us arather detailed picture of differences and similarities.

OVERVIEW OF INVESTIGATIONS

The work being presented here draws on the research of a number ofindependent researchers working around a common core. Most of theanalyses on which this overview is based have a wider scope than merelythat of contributing to addressing the central question. We begin,therefore, by summarising earlier work we have already published so asto identify the main issues which arise.

In the edited volume by Bhatia, Candlin, Engberg and Trosborg(2003), a number of national legal systems are presented in general andwith a special focus on relationships between national language(s) of lawin various countries and national systems of arbitration.2 Thecontributions in the volume have served as contextual background forthe individual contrastive analyses, but will not be treated further here.

The studies in the project focused on two major genres: statutes andexecutive orders that function as the national or international statutoryauthority for international commercial arbitration, and arbitration rulesof individual chambers of commerce, which govern the arbitrationprocedures. The second genre may be seen as concrete instantiations ofprocedural rules within the framework set up by the first genre. Most ofthe investigation has been directed at statutes. Accordingly, we begin withsome of the important insights which result from the analyses ofarbitration rules as they give us a useful overview of possible aspects onwhich to focus when examining the larger collection of research works.

2 The following countries have been covered in the volume: Brazil, People’s Republic ofChina, The Czech Republic, Denmark, Finland, Germany, Hong Kong, India, Italy, Japan,Malaysia, Spain, and the Republic of South Africa.

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Arbitration rules

Here the relevant articles are those of Belotti (2003), Facchinetti (2003)and Garzone (2003), investigating Italian, English, French and Swedisharbitration rules written in or translated into English. Arbitration rulesconnected to the specific national cultures have been investigated togetherwith the UNCITRAL Rules, which are a set of model rules issuedinternationally by the United Nations. In these texts, the most importantelement of generic integrity relates to the macrostructure of the texts.There are major overlaps in terms of topics covered, in theirmacrostructures as well as in their order of appearance. So on thesegrounds, it may be stated safely that what we have here are examples ofa cross-cultural genre.

One important general difference among the texts under study liesin their different contextual situations, i.e. their different national contextsrather than some international setting. On the one hand, Belotti (2003,32) finds a general tendency for both national arbitration rules and forthe UNCITRAL rules to be more reader-friendly from the point of viewof, for example, manageable sentence length and syntactic complexity.In his view, this general characteristic probably derives from the fact thatarbitration rules are always meant for business people rather than for legalexperts. However, Belotti (2003, 38) and Facchinetti (2003, 169–170)also find that Italian rules are more detailed, concrete and easy to processthan those of the UNCITRAL model. In particular the national textsdemonstrate a higher degree of textual simplicity on a number of differentlevels than does the international text. In principle, this characteristiccould be due to the differences between the model law and the concreterules of specific chambers of commerce in one national jurisdiction, whichmay be a consequence of two different types of context (national vs.international, abstract vs. concrete).

Table 1.1 Number of words in arbitration rules under scrutiny (Garzone 2003, 186)

Arbitration rules by countries Number of words

English rules 8,266 words

French rules 6,277 words

Swedish rules 4,055 words

However, the study by Garzone (2003, 214) shows that theUNCITRAL rules are much less complex than the national English rules,

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whereas the Swedish rules are even less complex than the French ones,especially in terms of their average sentence length. This shows thatdespite the shared generic integrity of the genre in question across thesecontexts, especially in the field of macro- and move structure, there aremajor differences in the stylistic features of the realisations of rules inEnglish. The legal writing is heavily influenced by the underlying nationallegal culture. This influence may be seen, as indicated earlier, in terms ofthe syntactic complexity as well as in the number of words contained inthe texts.

Another indicator is the use of modal auxiliaries: French and Swedishrules show more variation in the choice of modals as well as a lessconsistent use of shall than English and UNCITRAL law. Thischaracteristic may be attributed to the fact that civil law legal cultures(like Sweden and France) traditionally use fewer modal auxiliaries and agreater variety of different expressions of the modality than common lawlegal cultures (England) and the English of international contracts(Garzone 2003, 206–208).

The investigation of arbitration rules from different cultures thusshows that although a number of successful efforts have been made toharmonize the content of such rules there is still visible a substantialinfluence of national legislation and drafting practices, even when textsare written in English (Garzone 2003, 211–215; 216). Generic integrityseems to be strongest at macro level (although national legislations mayalso have a differentiating influence here), whereas differences are morevisible at micro level due to variations in drafting practices.

Statutes on arbitration

The general picture arising from the investigation of arbitration rulesencourages the finding that generic integrity is primarily the function ofoverlapping macro-structures, whereas cultural differences operateprimarily at the micro level. This is also true of the arbitration statutes,which have been the focus of attention in several papers, some of whichare the following:Scotland (Dossena 2003)England (Tessuto 2003)Finland (Salmi-Tolonen 2003)Denmark (Engberg / Rasmussen 2003)Germany (Engberg 2004, Engberg/Heller 2002, Heller 2003)

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Italy (Giannonni 2003)Spain (Chierichetti 2003)Czech Republic (Chroma 2003)Malaysia (Hashim 2004)India (Bhatia/Candlin 2004)China (Bhatia/Candlin 2004, Trosborg 2004)Brazil (Frade 2004)

The texts under study have been compared to either the UNCITRALModel Law 1986 or to the Geneva Convention of 1962, on whichinternational model law is based.

Concerning similarities among the investigated texts, we note a highdegree of cross-cultural overlap in the area of macro- and move structureof these texts. The general principle of text structuring in statutes is thatof conditional argumentation (Heller 2003, 295). This implies that anumber of topics are treated in the texts and that the structuring principleis a combination of conditions and consequences (qualifications, Bhatia1993, 115) which serve as a basis for argumentation by courts orarbitrators. The topic is divided into a number of articles, each containingsome kind of legislative provision or definition, although the number ofarticles, and especially their internal subdivision, may differ considerably.Finally, the analyses in the project show that all-inclusiveness andprecision are guiding principles in the structuring of statutory texts, withthe proviso that the characteristic of generality, fuzziness and vaguenessacquires major importance in most cases (Frade 2004, 67–71).3 Therelative importance of these three kinds of characteristics may differ acrosscultures.

Many of the analyses explicitly state that the underlying national legalsystem and the drafting traditions of the specific legal culture studied playa substantial role in shaping concrete texts, even in the case ofinternationally oriented texts such as the statutes on internationalcommercial arbitration. We illustrate some of these different traditionsin what follows.

Generally, there is a basic difference between the contexts of theconcrete national statutes on the one hand, and those of generalinternational conventions (UNCITRAL Model Law, Geneva Convention),

3 For more discussions of the balance between these two aspects, see Bhatia/Engberg/Gotti/Heller (2005) and Engberg/Heller in this volume.

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on the other. This difference derives from the fact that the internationaltexts establish a framework with the specification of a number ofalternatives to choose among, whereas a national statute relies more onthe generality of the text. As a consequence, national statutes display fewerinstances of bi- and multinomials than the international texts. Thefollowing example from the UNCITRAL Model Law illustrates the point.

Fig. 1.1 Bi- and multinomials in UNCITRAL Model Law article 26 (Frade 2004, 61)

Table 1.2 Number of bi- and multinomials in Danish, Chinese and Italian texts

International National Differencetext statutory text

Denmark (Engberg/Rasmussen, 2003, 120) 063 024 -62 %

China (Bhatia/Candlin 2004, 20) 010 003 -70 %

Italy (Giannonni 2003, 231) 231 125 -46 %

Furthermore, Frade (2004, 62) states that bi- and multinomials are usedvery sparsely in the Brazilian statute on Arbitration. Consequently, the

Article 26. Expert appointed by arbitral tribunal

(1) Unless otherwise agreed by the parties, the arbitral tribunal

(a) may appoint one or more experts to report to it on specificissues to be determined by the arbitral tribunal;

(b) may require

to give the expert any relevant informationor to produceor to provide access to

any relevant documentsgoodsor property

for his inspection.

However, it is interesting to see that the texts investigated from othercountries also display this characteristic:

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national statutes are shorter than the international texts (Italy: 5,291 vs.4,067; Denmark: 1,483 vs. 848; China: 669 vs. 341).4

In the Indian text, however, we see exactly the opposite situation:

Table 1.3 Number of bi- and multinomials in Indian text

International National Differencetext statutory text

India (Bhatia/Candlin 2004, 20) 10 16 + 60 %

In the same way, in the analysis of the Malaysian text (Hashim 2004)and of the English text (Tessuto 2003) a number of examples of complexbi- and multinomials are reported, although without exact quantitativedata. However, it is clear from the studies that complex bi- andmultinomials are not rare in the Malaysian and English texts. Thisindicates that we can hardly identify the use of bi- and multinomials asan aspect of generic integrity across legal cultures. Rather, the use of bi-and multinomials is dependent on the type of legal system of theunderlying legal culture. Denmark, China, Italy are civil-law countriesand have a significantly lower incidence of bi- and multinomials, whereasIndia, England, and Malaysia are common-law countries, and they showa much higher incidence of these lexico-grammatical features.

Interestingly, although a precise quantitative analysis of bi- andmultinomials in the German statute is lacking, Heller (2003, 292; 294;309) notes that the recent German statute she analysed is much morecomplex than the former version of the German statute. Moreover, thishigher complexity is also due to the use of bi- and multinomials. Thenumber of conditionals is more or less constant from one version of theGerman statute to the other, but bi- and multinomials have been usedmore frequently when formulating conditionals in the recent version inorder to achieve a higher degree of precision than the traditional civil-law drafting style of German statutes is capable of. The result is interestingbecause it is one of the rare examples where a national statute has takenover a convention from a foreign tradition, probably due to translation,adoption or closer approximation.

4 Not all analyses look at the whole texts, but concentrate upon comparable parts. Both theChinese and the Italian text has been compared to the UNML, but the analysis of theChinese text only covers three articles in UNML and their corresponding sections in theChinese statute.

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The observed differences may be attributed to differences in theimportance of all-inclusiveness and precision, respectively. According tothe general function of statutes in legal systems, modern national statuteshave to achieve all-inclusiveness and precision. However, depending uponthe basic legal approach, different traditional strategies are adopted inthe studied texts: Civil-law jurisdictions seem to opt for all-inclusiveness,using more abstract wording and therefore generally both fewer wordsand fewer bi- and multinomials than the international texts on which thenational statutes are based; common-law countries, on the other hand,opt for precision, generally achieved via more words and more bi- andmultinomials than the international texts. The German statute is a specialcase in that it follows many of the traditional conventions of Germanstatutes, but in its structuring rather opts for a non-traditionally highdegree of precision, as it contains a higher number of conditions, a traitwhich normally leads to a higher degree of explicitness (Heller 2003, 295).

Following the same line of argument, we see differences in the useof modal auxiliaries. Common-law texts have a relatively high proportionof explicitly expressed modality in the format of modal auxiliaries. Civil-law texts, on the other hand, often use simple present or future tenseand thus express the modality in a more indirect way (see for exampleChierichetti 2003, 54–55). This is further supported by Garzone (2003)in the investigation of the arbitration rules.

Summarizing the results

If we look at the issue of generic integrity in the case of the two genres underscrutiny (statutes and arbitration rules), macro- and move structure arevery stable across cultures concerning both genres. All-inclusiveness andprecision also seem to belong to the cross-cultural characterising traits oftexts of the genre, but the focus may shift between them and, as a consequence,textual realisations like the use of bi- and multinomials are not part of theoverall characteristics of the genre across cultures. Their relative importanceis dependent on the degree of importance accorded to the characteristicof precision by the respective legal cultures. Here, a first-level divisionbetween common-law and civil-law cultures becomes important. We maythus postulate two general sub-types of the genre on this basis.

Finally, most analyses show that national drafting traditions at varioustextual levels, which include lexico-grammar as well as arrangements ofqualifications within the structure of statutory clauses, are generally the

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dominating factor: Statutes on international commercial arbitration arewritten so that they meet the traditional standards of the underlying legalculture, irrespective of the language used (English or the nationallanguage). As a matter of fact, the analyses undertaken as part of theproject only found one example of a text where this description does notfit, viz. the recent German statute. Here, although many of the traditionalcharacteristics of the genre in the German legal culture are to be found,Heller argues that the textual structuring differs considerably from theformer version of the same statute — and thus from the traditionalstandards — in being more deeply structured and thus more explicit andprecise. It would be interesting to investigate more thoroughly whether anew development is on its way here, breaking up the divisions betweenthe two major blocks represented in the analyses of the project, viz. thatof civil-law and common-law countries.

A preliminary answer thus to one of the central questions of theproject, viz. the degree of generic integrity in the statutory genres underscrutiny, is that a number of similarities have been found, mainly at highertextual levels; that general contextual factors like the quest for all-inclusiveness and precision are stable across cultures, but that nationaltraditions also play a considerable role. As already discussed, despite thefact that international commercial arbitration is a field more likely to movetowards greater harmonization, legal genres are still deeply rooted in theirnational cultures.

MAIN ISSUES OF FOCUS IN THE PRESENT VOLUME

In contrast to already published work, which has also been briefly referredto above, the chapters in this volume address some of the major issuesemerging from these studies and do so in a more comparative way, takingthese concerns further, raising more theoretical issues and discussing theirimplications for legal drafting, translation and legal practice. In thefollowing we identify some of these general issues and discuss thecontributions made by authors of this volume.

Vagueness and indeterminacy

Vagueness and indeterminacy in statutory texts create a dilemma in law.The basic assumption is that society must be governed by the rule of law

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and not on the basis of individual beliefs or actions. However, it is alsoobvious that indeterminacy and vagueness are typically inherentcharacteristics of law, thus making interpretation a necessary andimportant aspect of legal application.

In international commercial arbitration this aspect of interpretationassumes greater importance because of several factors. Firstly, arbitrationis inherently characterised by a relatively lower degree of formalisationand a higher degree of negotiability than is the case in normal litigation,and secondly, it often involves procedural rules of one country, but wherethe parties may to a large extent (depending on the chosen forum andthe relevant arbitration rules) decide the procedural rules for their disputethemselves. This means that at least hypothetically, rules for internationalcommercial arbitration will encourage a high degree of vague expressionswhich may facilitate negotiation between the parties and the arbitrators.

Engberg and Heller investigate vague expressions in arbitration lawsand claim that they are typically essential as discretion markers becausethe flexible nature of arbitration discourse makes relatively more roomfor interpretation. They further argue that qualifying expressions, althoughintegral features of legislative provisions, do not necessarily eliminatevagueness. This is chiefly because of the presence of ‘internal’ qualifierswhich contribute significantly to the negotiation of scope and application.

Globalization of legal practice

Economic globalization exercises a significant effect on relations amonginstitutions, organizations and actors across societies, cultures and legalsystems, through both law and language. It tends to influence all formsof legal relations through the creation and recreation of new forms ofexpression for the construction of professional practices and identities(Fairclough 2001).

Economic globalization not only creates conditions foruniversalization of trade and investment practices — often influenced bydominant American modes of thinking — but also creates conditions forthe development of a parallel implementation of legal approaches basedon the common law tradition. The globalization of law presupposes itsoperational autonomy vis-à-vis other national laws, serving to underminethe autonomy of nations in regard to their law practices.

Frade analyzes the implications of legal globalization in the contextof Brazil, a Portuguese-speaking and civil law country, but one which is

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fully integrated into global economy. She emphasises the adjustments thatneed to be made to comply with the latest requirements for becoming“legally global” through the enactment of the Brazilian Arbitration Lawand the implications this has on national legal practice, culture, discourseand education. She points out how national legal discourse tends to displaya new texturing of meanings to reflect the “generalized tensions betweeninternational practices and local traditions” (Fairclough 2001: 25–26),while at the same time legal education and professional training calls fora new perspective for training ‘international lawyers’ to achieve “coreinternational legal competence” (Orban III 2001: 53).

Litigation v. arbitration

Commercial activities in the present-day world of intense corporatecompetition have become increasingly complex. Conflicts of various kindsarise and are resolved in various ways through litigation, arbitration,mediation, conciliation or negotiation. Litigation in the common lawcountries is adversarial and power-laden, and discourse processes areconstrained by legal authority and absence of any choice, making discoursein the litigation process typically monologic (Bakhtin, 1984). Othermechanisms, in comparison, are essentially devoid of the imperatives ofadversarial process, and hence can be viewed as dialogic in nature.

Arbitration, although like litigation in its adjudicatory process, allowsdialogue with no legal mandates as long as this is acceptable to the partiesto the conflict. In contrast, a judge in a litigation process is allowed toperform only within the boundaries of specific legal mandates, whetherthey be legislative authorities or legal precedents. In arbitration, theemphasis is on settling the dispute and winning the case.

Commercial Arbitration proceedings can be, and often are influencedby conventional legal practice in a typically adversarial framework. Fromthe point of view of disputants arbitration should be viewed as negotiationand conciliation and must take place in a dialogic mode instead of theadversarial mode, (which is) clearly seen as monologic. The intenselydialogic and dynamic nature of commercial arbitration mechanism is morevisible in the context of the multi-cultural and globalized nature ofeconomic and business activities.

Based on arbitration proceedings in India, Dhanania argues thatcommercial arbitration proceedings are increasingly being influenced byjudicial processes, and hence are less consistent with the principles of

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negotiation and settlement, and their dialogic modes of interaction. Theseproceedings, she argues, are becoming mere replicas of the judicial processin private settings. Such adversarial resolution of disputes is contrary tothe spirit of arbitration of commercial conflicts.

Based on arbitration practices in Japan, Sato proposes the concept ofhybrid dispute processing, which combines some of the basic disputeprocessing elements such as conciliation, arbitration, and litigation. Heidentifies the need to recognize the evolution of Alternative DisputeResolution (ADR) and to cope with the problems arising from anincreasing ‘colonization’ of arbitration by litigation in internationalcommercial contexts. He discusses several examples of hybrid disputeprocessing from various international contexts, especially Japan, andpoints out that such hybrid dispute resolution will contribute toharmonization of dispute processing from various dispute cultures scoresthe world.

Socio-cultural constraints on arbitration: Harmonization oflegal discourse

Normative discourse (statutes and regulations) varies in countries withdifferent constitutional, sociocultural and economic conditions in orderto adapt to different cultural, linguistic and legal environments, dependingon local customs and traditions, legal systems, nature of disputes,procedural aspects, linguistic issues, cultural contexts, and other socio-economic constraints. In the contexts of global trade and commerce, lawis increasingly being interpreted in a more international than a purelyjurisdictional perspective, which is more centrally relevant to internationalcommercial arbitration than to any other legal domain. It would beinteresting to investigate the extent to which cultural elements influencesuch differentiation in the construction, interpretation, and use ofarbitration laws and procedures in various countries. Considering cultureas a set of traditions and social practices typical of a specific professionalcommunity — in this case, legal practitioners involved in arbitrationprocedures — one may find interesting variations in arbitration laws andpractices in different countries and legal systems, especially when oneconsiders the conditions and constraints within which legal texts are framedand the actual situations in which such texts are used and interpreted.

Features such as the choice of technical lexis, the use of specificsyntactic formations, for example binomial/multinomial expressions,

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complex prepositions, and nominalizations, the transparency and spreadof information, concerns for conceptual or terminological unambiguityand explicit textual schematization, are indicative of the emphasisnormally placed by common law legislation on precision and detailedspecification of legal action in specific circumstances. The civil law, onthe other hand, shows a divergent behaviour, paying more attention tosimpler syntactic formulations, lower level of information density,extensive use of simple and compound sentences, and the use of commonlexical forms.

Gotti, based on his analysis of arbitration laws from differentcountries, points out textual, conceptual and stylistic discrepancies thatarise in the process of establishing closer harmonization in legal normativediscourse at a global level. He argues that harmonization becomesparticularly difficult when ‘model’ texts have to be adopted in variouscontexts. Such contexts give rise to interesting differentiations in theresulting texts that can be attributed not only to the languages in whichthe final texts are expressed but also to the different cultural traits andlegal traditions of the communities for which they are meant. In particular,he finds significant variations in the specification of information in thevarious texts, which he claims are due to the differences in socio-culturalexpectations and practices that constrain social behaviour in localcontexts.

His analysis confirms the influence of cultural constraints in textsthat are the result of a translation or a re-writing process used ininternational arbitration. While the main objective of using UNCITRALModel Law was to create greater harmonization in various countryspecifications, Gotti, on the contrary, finds that this kind of totalharmonization is clearly lacking. A more realistic objective might be tostrive for a common understanding of terms and practices rather thantotal adoption and blind acceptance of proposed models. This might beachieved through the exercise of flexibility and non-involvement indecreeing rules for domestic arbitration, and emphasizing the freedom ofaction of individual states and the discretion of the institutions involved.

Confidentiality in arbitration

Arbitration is generally seen to be a private matter unless the agreementsprovide otherwise. It is assumed that any sensitive evidence,documentation or matters raised in the proceedings will not be made

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public. In other words, contrary to the situation in court proceedings,personal confidences, trade secrets, business processes and reputationsare effectively safeguarded.

Confidentiality, cost-effectiveness and flexibility in settlingcommercial disputes are some of the key aspects in arbitration as againstlitigation. Parties often weigh some of these advantages when they decidewhether to refer the dispute to arbitration rather than litigation. However,there are substantial international differences in the existence and scopeof the duty of confidentiality. Privacy ranks relatively low as the mostimportant attribute of arbitration, in spite of an expectation that theproceedings will be conducted in the absence of strangers to the arbitrationand that their business and personal confidences will be kept in strictconfidence. The International Court of Arbitration (ICA) Rules ofArbitration provide for the protection of trade secrets and confidentialityof the award and the privacy of the hearings.

The confidential and informal nature of arbitration not only protectsparties from potentially inconsistent jury awards, settlements and punitivedamages that carry large liability, but also from public scrutiny andembarrassing criticism. In the case of labour disputes, arbitration is muchpreferred, since this allows the preserving of a positive employer-employeerelationship with a greater possibility of employee reinstatement duringthe pendency of the dispute.

To, in his study of confidentiality in arbitration, mediation andlitigation considers these issues from an international perspective takinginto account case laws on arbitration and mediation from a number ofprominent legal systems, including those in Australia, Hong Kong, thePeople’s Republic of China, Sweden, Singapore, the United Kingdom, andthe United States of America.

Arbitral awards

Unlike arbitration laws and rules which rely heavily on the use of typicallexico-grammatical features for clarity, precision, unambiguity and all-inclusiveness (Bhatia, 1993), modern English arbitral awards rely moreon content. Awards are presented and expressed in modern, plain andeffective English, and as such are readily comprehensible to the lay aswell as to specialist audiences.

Tessuto argues that although the main purpose of arbitral awards isto provide simple, cost effective ways of resolving disputes, the arbitrator’s

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attitude is equally important, especially his or her socio-culturally-institutionalised judgment in contexts where social behaviour needs tobe controlled, and justified.

Multicultural tribunals

Malanczuk, on the basis of his first hand experience of the Iran-UnitedStates Claims Tribunal, argues for the multi-cultural composition of thearbitrators in tribunals. This tribunal was created under uniquecircumstances, considering the diverse ideological premises of the parties,their political and military confrontation, and the volume of the economicinterests at issue, and this was often reflected in the difficulties of itsoperation in practice. In that particular instance, Iran and the United Stateseach appointed three arbitrators from their own countries. Since theirnational legal systems were as different as their languages, cultures andreligion, these differences were further complicated by the diversity ofthe backgrounds and legal traditions of the third-country arbitrators fromSweden, Germany, Switzerland, Argentina, Poland, Finland, Netherlandsand Italy. This made tribunal proceedings and decision in terms both ofthe procedure and the substantive law truly multicultural, offering a broadfield of study for the meaning of the clash of legal cultures in internationalarbitration.

Translation

In the context of the globalization of international trade, the number ofinternational disputes submitted to arbitration has increased tremendouslyin recent decades with actors from all continents speaking and writing ina multitude of languages. As a result of the acceptance of internationalinstruments such as the UNCITRAL Model Law on InternationalCommercial Arbitration, a high degree of harmonization has been achievedin national arbitration laws. The Model Law has been accepted in wholeor in part by a large number of states and jurisdictions, many of whichhave incorporated it into their national law largely by an indirect processof translation. Although mostly behind the scenes, translation plays a vitalrole in numerous aspects of international arbitration, including thetranslation of legal documents for the proceedings, the translation ofnational arbitration laws into world languages, the translation of

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institutional procedural rules and standard arbitral clauses, the productionof multilingual instruments of international arbitration law and others.However, multilingualism in the law can be effective only if those affectedby the instrument are guaranteed equality before the law, regardless ofthe language of the text. Although the authentic texts of a legal instrumentare presumed to be equal in meaning, effect and intent, there is always arisk of linguistic diversity and error when translation is involved. If thedivergences and errors are harmless, it is a less serious problem; however,in cases where more serious ambiguities are noticed, they can bepotentially misleading, posing a threat to uniform interpretation andapplication. This assigns a serious responsibility to translators of legaldocuments. Sarcevic, in her chapter, rightly argues that despite the growinguse of English, translation plays a significant role not only in theglobalization but also in the harmonization of international arbitration.However, she concedes that the process of legal translation can be riskyeven for native speakers if they have not participated in the draftingprocess and have no contact with the drafters of the authentic text ortexts. Since the ultimate purpose of arbitration legislation is to resolvedisputes, not to create new ones, translators have the difficult task ofanticipating how the target text will be interpreted and applied by usersof different legal, linguistic and cultural backgrounds (cf. Sarcevic 2000:72). The cause for concern is greater, she adds, when a similar divergenceexists in the authentic texts of multilateral instruments of internationallaw, which are interpreted and applied by national courts and arbitratorsfrom diverse legal systems and cultures.

One of the most difficult aspects of legal translation is the issue ofterminology, and Chroma, in her chapter, outlines some of the keyterminological issues relevant for the translation of arbitration laws andprocedures. She argues for a conceptual approach to terminology in legaltranslation which relies on the choice of seemingly equivalent terms intwo or more different legal systems using two or more different languagesas the vehicles of legal information, always based on the comparison ofthe scope (intension), applicability (in various contexts and genres), thepurpose and effect of legal concepts. She recommends extensive conceptualanalyses of key terms to avoid the potential risk of choosing translationalequivalents which would not be adequate in the target legal system and,hence misleading or incomprehensible for the ultimate recipients.

To sum up, research reported in this volume has reinforced thenecessity to pay attention to issues of both the language and the law as ameans of harmonizing procedures in the construction, interpretation and

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use of legal language in international legislative contexts. This volume isintended to take the realisation of this necessity forward in closeinternational cooperation with established researchers and practitionersin language and law. The descriptive, interpretive and explanatoryapproach to the analysis of legislative data has enabled the contributorsto this volume to highlight the significance of language analysis to anunderstanding of international arbitration laws in multilingual andmulticultural legal jurisdictions.

REFERENCES

Allen, L. E. (1957) Symbolic Logic: A Razor-Edged Tool for Drafting andInterpreting Legal Documents. Yale Law Journal 66.

Atkinson, J. M. and Drew, P. (1979) Order in Court: The Organization of VerbalBehaviour in Judicial Settings. London: Macmillan.

Austin, J. L. (1962) How to Do Things with Words. New York: OxfordUniversity Press.

Bahktin, M. M. (1984) Problems of Dostoevsky’s Poetics. Ed. and trans. CarylEmerson. Theory and History of Literature, Volume 8. Manchester:Manchester University Press.

Belotti, U. (2003) Generic Integrity in Italian Arbitration Rules. In Bhatia,Candlin and Gotti (eds.), 19–40.

Bennion, F. (1997) Statutory Interpretation (3rd Ed.). London: Butterworths.Bhatia, V. K. (1982) An Investigation into Formal and Functional Characteristics

of Qualifications in Legislative Writing and Its Application to English forAcademic Legal Purposes. Ph.D. thesis, University of Aston in Birmingham.

Bhatia, V. K. (1983) Simplification v. Easification: The Case of Legal Texts.Applied Linguistics 4, 1: 42–54.

Bhatia, V. K. (1987) Textual-Mapping in British Legislative Writing. WorldEnglishes 6, 1.

Bhatia, V. K. (1993) Analysing Genre — Language Use in Professional Settings.London: Longman.

Bhatia, V. K. and Candlin, C. N. (2004) Analysing Arbitration Laws acrossLegal Systems. Hermes 32: 13–43.

Bhatia, V. K., Candlin, C. N., Engberg, J. and Trosborg, A. (eds.) (2003)Multilingual and Multicultural Contexts of Legislation: An InternationalPerspective. Bern: Peter Lang.

Bhatia, V. K., Candlin, C. N. and Gotti, M. (eds.) (2003) Legal Discourse inMultilingual and Multicultural Contexts: Arbitration Texts in Europe. Bern:Peter Lang.

Bhatia, V. K. and Engberg, J. (2004) Special Issue of Hermes, Journal ofLinguistics, Volume 32.

Legal 01 12/19/07, 5:10 PM28


Bhatia, V. K., Engberg, J., Gotti, M. and Heller, D. (eds.) (2005): Vaguenessin Normative Texts. Bern: Peter Lang.

Candlin, C. N. and Bhatia, V. K. (1998) Legal Communication: A Study toInvestigate the Communicative Needs of Legal Professionals. Hong Kong:Law Society of Hong Kong.

Candlin, C. N., Bhatia, V. K. and Jensen, C. (2002) Must the Worlds Collide?Professional and Academic Discourse in the Study and Practice of Law.In Cortese, P. and Riley, P. (eds.), Domain Specific English: Textual Issues:From Communities to Classrooms. Tübingen: Peter Lang.

Candlin, C. N. and Maley, Y. (1994) Framing the Dispute. International Journalfor the Semiotics of Law 7, 19: 75–99.

Candlin, C. N. and Maley, Y. (1997) Intertextuality and Interdiscursivity inthe Discourse of Alternative Dispute Resolution. In Gunnarsson, B.-L.,Linell, P., and Nordberg, B. (eds.), The Construction of ProfessionalDiscourse. London: Longman.

Candlin, C. N., Maley, Y., Koster, P. and Crichton, J. (1995) Lawyer-ClientConferencing: A Report to the Law Foundation of the NSW. Sydney: LawFoundation of NSW.

Candlin, C. N. and Uehara, R. (1987) The Structural and DiscoursalCharacteristics of ‘Voir Dire’. In Coleman, H. (ed.), Language and Work,The Hague: Mouton de Gruyter.

Charrow, V. and Charrow, R. (1978) The Comprehension of Standard JuryInstructions: A Psycholinguistic Approach. Arlington, VA: Center forApplied Linguistics.

Chierichetti, L. (2003) El arbitraje en España. Con unos apuntes para unanálisis lingüistico con la Ley Modelo de UNCITRAL. In Bhatia, Candlin,and Gotti (eds.), 41–61.

Chroma, M. (2003) The Language of Arbitration: From Intent to the Act. InBhatia, Candlin, and Gotti (eds.), 63–86.

Cross, R., Bell, J. and Engle, G. (1995) Statutory Interpretation. London:Butterworths (3rd ed.).

Dickerson, R. (1975) The Interpretation and Application of Statutes. Boston:Little, Brown and Company.

Dossena, M. (2003) Arbitration in Scotland: Local Specificity andInternational Homogeneity. In Bhatia, Candlin, and Gotti (eds.), 87–109.

Eagleson, R. D. (1991) The Plain English Movement in Australia and the UnitedKingdom. In Steinberg, E. T. (ed.), Plain Language — Principles andPractice. Detroit: Wayne State University Press.

Engberg, J. (2004) Redehintergründe von Gesetzestexten — ein Sonderfall?In Letness, Ole and Lindemann, Beate (Hrsg.): Diathese, Modalität,Deutsch als Fremdsprache. Festschrift für Oddleif Leirbukt zum 65.Geburtstag. Tübingen: Stauffenburg, 197–210.

Engberg, J. and Wølch Rasmussen, K. (2003) Danish Legal Language in

Legal 01 12/19/07, 5:10 PM29


International Commercial Arbitration. In Bhatia, Candlin and Gotti (eds.),111–154.

Eskridge, W. (1994) Dynamic Statutory Interpretation. Cambridge, MA:Harvard University Press.

Evans, J. (1990) Statutory Interpretation: Problems of Communication,Auckland: Oxford University Press.

Facchinetti, R. (2003) The 1998 Rules of the International Court of Arbitrationas Implemented in Italy. In Bhatia, Candlin and Gotti (eds.),155–76.

Fairclough, N. (2001) Discurso e mudança social [Discourse and socialchange]. Brasilia: Editora UnB.

Frade, C. (2004) Generic Variation across Legislative Writing: A ContrastiveAnalysis of the UNCITRAL Model Law and Brazil’s Arbitration Law.Hermes 32: 45–75.

Fredrickson, K. (1995) American and Swedish Written Legal Discourse: TheCase of Court Documents. Ph.D. dissertation, University of Michigan.

Garzone, G. (2003) Arbitration Rules across Legal Cultures: An InterculturalApproach. In Bhatia, Candlin and Gotti (eds.), 177–220.

Giannoni, D. S. (2003) The UNCITRAL Model and Italian Statute Law: ALinguistic and Topical Description. In Bhatia, Candlin and Gotti (eds.),221–246.

Gifford, D. (1990) Statutory Interpretation. North Ryde, NSW.: Law Book.Gunnarsson, B. (1984) Functional Comprehensibility of Legislative Texts:

Experiments with a Swedish Act of Parliament. Text 4: 71–105.Hashim, A. (2004) Aspects of Content and Language in the Malaysian

Arbitration Act. Hermes 32: 77–98.Heller, D. (2003) Prinzipien der Textgestaltung und der Gebrauch von

Konditionalsätzen im deutschen Schiedsverfahrensrecht. In Bhatia,Candlin and Gotti (eds.), 287–312.

Heller, D. and Engberg, J. (2002) Verwendungskonventionen deontischerModalmarker im deutschen Schiedsverfahrensrecht. In Gotti, M., Heller,D. and Dossena, M. (eds.), Conflict and Negotiation in Specialized Texts.Bern: Peter Lang, 165–188.

Lang, J. T. (1989) The Place of Legislation in European Community Law.Statute Law Review 10, 1.

MacCormick, D. N. and Summers, R. S. (1991) Interpreting Statutes: AComparative Study, Aldershot: Dartmouth.

Maley, Y. (1985) Judicial Discourse: The Case of the Legal Judgment. In J.E. Clark (ed.) The Cultivated Australian: Festschrift for Arthur Delbridge.Hamburg: Helmut Buske Verlag, 159–173.

Maley, Y. (1987) The Language of Legislation. Language and Society 16: 25–48.

Maley, Y. (1994) The Language of the Law. In Gibbons (ed.) Language andthe Law. London: Longman.

Legal 01 12/19/07, 5:10 PM30


Maley, Y., Candlin, C. N., Koster, P., and Crichton, J. (1995) Orientations inLawyer-Client Interviews. Forensic Linguistics 2(1).

Mellinkoff, D. (1963) The Language of the Law. Boston: Little Brown Co.Orban, III, F. A. (2001) Legal Globalisation: The Challenges for In-House

Counsel. ACCA Docket 19(2): 48–62.Renton, D. (1975) The Preparation of Legislation. A Report of a Committee

Appointed by The Lord President of the Council. London: HMSO.Salmi-Tolonen, T. (2003) Arbitration Law as Action: An Analysis of the

Finnish Arbitration Act. In Bhatia, Candlin and Gotti (eds.), 313–336.Sarcevic, S. (2000) New Approach to Legal Translation. 2nd ed. The Hague-

London-Boston: Kluwer Law International.Searle, J. R. (1965) Speech Acts: An Essay in the Philosophy of Language.

Cambridge: Cambridge University Press.Tessuto, G. (2003) Legislative Discourse in Arbitration Language: The English

1996 Arbitration Act and the UNCITRAL Model Law. In Bhatia, Candlinand Gotti (eds.), 337–379.

Thomas, R. (1985) Plain English and the Law, Statute Law Review 9, 3: 144.Trosborg, A. (1991) An Analysis of Legal Speech Acts in English Contract

Law. Hermes 6: 65–90.Trosborg, A. (1997) Rhetorical Strategies in Legal Language: Discourse Analysis

of Statutes and Contracts. Tübingen: Gunter Narr.Trosborg, A. (2004) Regulative Strategies in Arbitration Law. Uncitral Model

Law on International Commercial Arbitration (UNCITRAL) comparedwith Arbitration Law of the People’s Republic of China. Hermes 32: 99–115.

UNCITRAL Model Law 1985.

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INDEX 329

Allen, L. E. 28Abascal, Z. 306Abel, R. L. 73Abelson, R. 273Alcaraz, E. 326Aoyama, Y. 73Asprey, M. M. 220Atkinson, J. M. 28Austin, J. L. 28

Bahktin, M. M. 28Baker, M. 219Bakhtin, M. M. 122Bartolini, F. 249Becka, J. 326Bell, J. 29Belotti, U. 28.249Bennet, J. M. 219Bennion, F. 28Benveniste, É. 192Bernini, G. 250Bhatia, V. K. 28, 141, 165, 192, 220,

250, 273, 287, 288, 306Blessing, M. 306Boguszak, J. 326Borris, C. 250Bowers, F. 220Brierley, J. E. 250Brown, H. 73

Index

Bühler, M. 306Burton, W. C. 326Butt, P. 306

Cameron, D. 288Campbell, L. 250Candlin, C. N. 28, 29, 30, 141, 165,

220, 250, 273, 288, 306Capek, J. 326Castle, R. 306Cavasola, P. 250Ceccon, R. 250Cermák, F. 326Channell, J. M. 165Charrow, R. 29Charrow, V. 29Chierichetti, L. 29Child, B. 220,288Chroma, M. 29,250Creifelds, C. 165Cremades, B. M. 250Crichton, J. 29,30Cross, R. 29Crystal, D. 165Curzon, L. B. 326

Danes, F. 326Danet, B. 220David, R. 250

AUTHOR INDEX

Legal 16 index 12/19/07, 5:22 PM329

330 INDEX

Davy, D. 165Delconte, R. C. 249Dickerson, R. 29Dossena, M. 29, 30, 250Drew, P. 28Driedger, E. A. 250

Eagleson, R. D. 29, 220Ehrat, F. 306Elliott, D. 220Elliott, D. C. 73Endicott, T. A. O. 165Engberg, J. 28, 29, 30, 141, 165,

220, 273, 288Engle, G. 29Eskridge, W. 29Evangelisti Allori, P. 273Evans, J. 29

Facchinetti, R. 29Fairclough, N. 29,288Felber, H. 326Filipec, J. 326Fiss, O. M. 73Fjeld, R. V. 165Frade, C. 29,288Fredrickson, K. 30Frommel, S. N. 251

Galinski, C. 326Garcez, J. M. R. 288Garner, B. A. 326Garzone, G. 30,251Giannoni, D. S. 30,251Gifford, D. 30Goffmann, E. 192Goldman, B. 122Goldstein, T. 326Gotti, M. 28, 30, 141, 165, 250,

251, 273, 306Grice, P. 273Gunnarsson, B. 30, 287Gunnarsson, B.-L. 29, 220Gustafsson, M. 251

Hahn, W. V. 165Halliday, M. A. K. 192, 288Harvey, M. 306Hashim, A. 30Hatim, B. 220Heller, D. 28, 30, 141, 165Hiltunen, R. 251Hoey, M. 288Hoffmann, L. 165, 326Hughes, B. 326Hunter, M. 122Hutchinson, T. 288Hyland, K. 165

Inomata, Takashi 73Ishikawa, A. 73

Jarvin, S. 251, 306Jensen, C. 28Jessop, R. 288José M. 306Joseph, J. E. 166, 306

Kajimura, T. 73Karrer, P. A. 306Kawashima, T. 73Kimble, J. 192Kintsch, W. 273Koster, P. 29, 30Kuper, A. 251Kurzon, D. 220

Lakoff, G. 166Lalive, P. 251Lang, J. T. 30Lazareff, S. 251Lieberman, J. K. 326Lowenfeld, A. F. 251Lüke, G. 166

MacCormick, D. N. 30Maley, Y. 28, 29, 30, 123, 141Marriott, A. 73Mason, I. 220

Legal 16 index 12/19/07, 5:22 PM330

INDEX 331

Matsuura, K. 73Meadow, C. M. 123Melis, W. 306Mellinkoff, D. 30, 251, 326Merry, S. E. 251Miki, K. 73

Nadelmann, K. H. 251Neumann, R. 73Newman, P. 73Newmark, P. 326Nida, E. A. 251Nussbaumer, M. 166

Ohkawa, H. 73Ong Guan Teck 177, 178, 180Orban III, F. A. 30, 288Ors v Hijjas 177, 178, 180

Park, W. W. 307Pathak, R. S. 251Paton, A. G. 250Paulson, J. 307Paulsson, J. 251Petta, P. 252Pinkal, M. 166Pinto, D. 288Putzo, H. et al. 166

Ragan, C. 74Rasmussen, K. W. 220Redfern, A. 122Reisman, W. M. 307Renton, D. 30Rider, B. A. K. 251Rodgers, D. 289Roth, M. 307Rylance, P. 192

Sager, J. C. 326Saleh, S. 252Salmi-Tolonen, T. 30, 252Sammartano, M. R. 123Sanders, P. 307

Sarcevic 307Sato, Y. 74Schneider, M. E. 307Scollon, R. 141Searle, J. R. 31, 192Shank, R. 273Soffritti. M. 166Solan, L. M. 166, 326Stein / Jonas 166Stein, D. 192Sullivan, R. 307Summers, R. S. 30Swales, J. 273

Taniguchi, Y. 74, 252Tashiro, K. 74Tessuto, G. 31Thomas, H. 166Thomas, J. 192Thomas, P. 327Thomas, R. 31Tiersma, P. M. 252, 327Trimble, L. 220Trosborg, A. 28, 31, 220, 252, 273,

288, 289

Uehara, R. 29

Van Dijk, T. A. 273van Houtte, H. 289Vermeer, H. J. 252von Mehren, A. T. 251

Waters, A. 288Wautelet, P. 289Wax, P. 166Wei, S. 250White, J. B. 166Winter, E. 289Wølch Rasmussen, K. 29Wright, S. 192

Zariski, A. 289

Legal 16 index 12/19/07, 5:22 PM331

332 INDEX

arbitration 3, 7, 8, 10–17, 19–27,36, 38–41, 43, 46, 48, 50–51, 53–107, 109, 111–112, 116–122,127–133, 135–140, 142–143, 146,148, 153, 154, 161, 164–167, 169–175, 177–185, 189–195, 197,199–207, 209–216, 218, 219, 221–224, 226–234, 236–238, 240–249,255–267, 269, 271–273, 276, 278–284, 291–297, 299–301, 303–306,309–311, 313–325arbitral awards 25, 38, 60, 64,

66, 67, 76, 84, 87, 101, 120,129, 134, 161, 179–182, 191,204, 213, 231, 236, 238, 240,269, 271, 280, 291, 299, 302,303, 305, 311, 320

arbitral jurisdiction 323arbitral services 95, 107arbitral tribunal 17, 40, 58, 63,

67, 78, 89, 99, 100, 104, 105,134, 142, 143, 156, 157–159,161, 162, 167, 168, 181, 203,204, 206, 210–215, 219, 223–227, 229–231, 233, 235, 237,240, 244, 260, 261, 298, 304,319, 321, 323, 324

arbitrate 69, 84, 85, 106, 111,121, 180

arbitrating clause 54, 106, 130,132, 173, 174, 203, 213, 233,238, 241, 242, 244–246, 259,260, 261, 264, 294, 318

arbitrating party 40, 84, 85, 90Arbitration Act 1952 169, 172,

178, 180Arbitration Act 1996 58, 92, 96,

97, 181, 182, 190, 193, 311,315, 317, 318, 320, 325, 321,323, 324

arbitration discourse 3, 21, 221,232, 234, 236, 239, 309

SUBJECT INDEX

arbitration laws 7, 10, 11, 12,21–23, 25–27, 57, 69, 76, 78,82, 91, 94, 122, 123, 127, 128,129, 131, 136, 140, 154, 166,199, 200–203, 205, 207, 209,211, 216, 218, 219, 243, 247,276, 291, 295, 297, 305, 306,317

arbitration procedures 13, 23,54, 65, 68, 71, 135, 139, 222,242, 243, 249

arbitration process 64, 68, 77,129, 135, 136, 139, 140, 183,243

arbitration rules 13–15, 19, 21,39, 63, 64, 69, 72, 79, 91, 94,95, 96, 99–102, 104, 122, 133,139, 179, 180, 207, 232, 233,245–247, 260, 279, 294, 295

Arbitration Rules of the BengalNational Chamber ofCommerce 122

arbitration statutes 15, 154, 318arbitrator 16, 21, 25–27, 41, 48,

53, 54, 61, 62, 63–72, 77, 78,80–82, 87–89, 91, 93–96,98–99, 101, 104–106, 112,118–122, 129, 132–134, 136–138, 139, 142, 153, 160, 161,169–171, 173–178, 181, 182,183–187, 189, 190, 191, 193,195, 197, 203, 205, 206, 209,210, 212, 214, 215, 219, 222–225, 226–229, 231, 233, 234,236–246, 248, 249, 260, 261,264, 265, 267, 270–272, 292–295, 297, 303, 314, 317–319,322–324

commercial arbitration 7, 13, 16,20–23, 26, 39, 48, 57, 63, 75,76, 79, 102, 105, 109, 116, 122,127, 128, 146, 153, 154, 167,

Legal 16 index 12/19/07, 5:22 PM332

INDEX 333

184, 200, 201, 206, 215, 220,221, 226, 231, 232, 278, 291,292, 299, 300, 303, 311, 317

disputants arbitration 22non-arbitrability 214non-arbitrating party 86

awards 25, 36–38, 40–45, 47, 54,60, 64, 66, 67, 69, 71, 76, 81, 84,86, 87, 90, 91, 92, 97, 98–106,117, 120, 122, 129, 134, 139, 140,142, 159–163, 167–171, 175–187,189–191, 193, 194, 196, 197, 213,261, 265–272, 280–283, 291, 297–300, 302–305, 311, 317, 320, 324arbitral awards 25, 38, 60, 64,

66, 67, 76, 84, 87, 101, 120,129, 134, 161, 179, 180–182,191, 204, 213, 231, 236, 238,240, 269, 271, 280, 291, 299,302, 303, 305, 311, 320

arbitration awards 54, 64, 69,71, 86, 91, 97, 139, 181, 182,193, 280, 281, 283

international awards 182, 184jury awards 25, 76partial awards 44, 45printing awards 183tribunal awards 38, 45

authority 8, 13, 22, 41, 43, 54, 55,63, 66, 82, 86, 88, 99, 102, 104,112, 128, 151, 152, 156, 169, 170,171, 176, 186, 199, 201, 203, 210,234, 235, 238, 239, 241–243, 246,249, 256, 273, 298, 299, 304, 318,319, 321, 322arbitral authority 319, 321authoritative 7, 57, 112, 116,

184, 186, 208, 294, 295, 296,302

authority of arbitrators 170,171

judicial authority 99, 322legal authority 8, 22, 186state authority 55

binominal 311, 314, 323

colonies 282colonization 110compensation 46, 49, 115, 181,

187, 188, 189, 195, 196conciliation 11, 22, 53–58, 60–70,

80, 81, 87, 94, 95, 109, 112, 119,122, 129, 131, 142, 226, 227, 255,257, 259, 260, 263–267, 269, 271,272civil conciliation 56, 62, 63, 65,

68conciliate 65, 66, 81, 111conciliator 54, 64, 65, 66, 67, 68,

69, 71, 80, 81, 94, 269family conciliation 55informal conciliation 53, 54, 65

confidentiality 24, 25, 68, 70, 75–80, 82–92, 94–101, 103–107,267

consensus 75, 106, 305consensual 80, 84, 110, 111

consideration 38, 128, 129, 138,154, 163, 177, 178, 187, 196, 201,221, 223, 232, 243, 246, 257, 262,295, 302, 310

constitution 39, 134, 139, 167, 275constitutional 5, 23, 118, 221,

247constitutive rules 202–207, 216–

219constitutive statements 207, 212

context 4–12, 14–16, 21, 22, 23–27,53, 55, 57, 59, 65, 69, 76, 79, 86,98, 109, 112, 117, 121, 122, 127–129, 140, 145, 147, 151, 159, 163,164, 186, 190, 191, 204, 210, 211,217, 221, 222, 229, 231, 232, 240,242, 244, 247–249, 256, 257, 260,272, 276, 281, 284–287, 301, 305,309, 310, 313, 316, 320, 322–325commercial contexts 121, 122context of globalistion 109

Legal 16 index 12/19/07, 5:22 PM333

334 INDEX

contexts of global trade andcommerce 23

cultural contexts 7, 9, 10, 23,117, 128, 222, 231

decontextualised 208international contexts 7, 10, 222,

281legal contexts 7, 11, 12, 204,

240, 256, 257, 260, 272, 285,313, 325

legislative contexts 27linguistic contexts 147local contexts 24, 248, 286multicultural contexts 7, 10,

127, 305multilingual contexts 10national contexts 7, 14, 247, 249political contexts 12pragmatic contexts 151recontextualise 286recontextualization 281, 282social contexts 112, 221, 284,

310uncitral context 53

convention 10, 16, 18, 19, 38, 56,57, 59, 120, 129, 131, 159, 179,204, 213, 231, 234, 248, 291, 292,297–302, 311, 315, 317–321, 323–325drafting conventions 301, 302ICSID convention 297international conventions 16,

318law convention 59legal convention 57, 59nations convention 278

culture 5, 8–12, 13–16, 18, 19–23,26, 27, 35, 48, 73, 109, 117, 118,127, 146, 150, 153, 196, 221, 222–224, 227, 229–231, 248, 249, 276,279, 280, 283, 286, 297, 303–306business cultures 117, 118commercial cultures 109, 229,

230

cross-cultural genres 14cross-cultural traits 232, 247,

249cultural 5–12, 14–16, 19, 22–25,

27, 48, 117, 118, 127–129, 140,196, 221–223, 226–229, 231,232, 244, 247–249, 255, 262,277, 279, 280, 286, 292, 296,305

cultural boundaries 10, 11cultural constraints 6, 23, 24,

140, 221, 222, 248cultural differences 8, 12, 15,

117, 118, 222, 227cultural elements 23, 221 ,222culture–bound 146, 231dispute cultures 73disputing cultures 280law cultures 19legal cultures 5, 12, 15, 16, 18–

20, 26, 35, 48, 224, 249, 279,280, 283, 286

litigation culture 227multi-cultural 22, 25, 48national cultures 14, 20socio-cultural 5, 6, 11, 23–25,

129, 164, 221, 244, 248, 277,279

socio-culturally-institutionalized 25

discourse 3–5, 7–11, 21–24, 109,111, 112, 116, 127, 128, 136, 140,150, 163–164, 181, 182, 185, 186,189, 191, 192, 199, 221, 222, 232,234, 236, 239, 247, 248, 249, 255,275–277, 280–282, 305, 309, 310,325arbitration discourse 3, 221, 232,

234, 236legislative discourse 3, 10, 11,

136, 140legal discourse 4, 5, 7–11, 22,

23, 127, 128, 150, 164, 234,

Legal 16 index 12/19/07, 5:22 PM334

INDEX 335

236, 239, 248, 249, 255, 276,277, 280, 281, 305, 309, 325

discourse analysis 109discourse of Commercial

Arbitration 109discourse in dispute resolution

mechanisms 109discoursal 9, 11, 129, 185, 191

discipline 8disciplinary 5, 9, 221, 229, 266disciplinary action 229disciplinary tribunal 266discipline-specific 163interdisciplinary conferences

305discursive 109, 111, 114, 117, 138,

139, 255, 276, 279, 283discursive level 276, 283discursive practice 109, 111,

114, 117, 255dispute 3, 21–27, 35, 38, 40, 41, 45,

47, 48, 49, 50, 53–67, 71–73, 75–77, 79–82, 84, 86, 87, 91, 92, 94–96,98, 104, 107, 109–113, 115–122,129–133, 138, 139, 142, 153, 158,159, 161, 169, 171–176, 179–181,189, 191, 193–195, 197, 204, 206,211, 213–215, 222, 226, 227, 230,231, 233, 235, 237, 240, 242, 244–247, 256, 257, 259, 262, 263, 268,271, 279, 280, 291–294, 296, 297,302, 305, 317–320, 322, 323civil disputes 62, 63, 67commercial disputes 24, 53, 59,

57, 109, 111, 121, 139, 244,247, 279, 280

disputants arbitration 22dispute processing 53–60, 62,

65, 66, 71–73dispute resolution 3, 58, 66, 73,

80, 81, 92, 95, 107, 109–112,116, 120, 121, 227, 230, 231,279, 294, 305, 317, 322

dispute sites 109, 113

disputing 55, 56, 67, 118, 280disputing culture 280international dispute 26, 35, 48,

49, 58, 222, 259, 291, 292, 294labor-management disputes 77labour disputes 25, 77legal disputes 50

doctrine 79, 226draft 77, 238

drafters 27, 182, 217, 219, 233,235, 237, 280, 296, 301, 303,304, 321, 324

drafting practice 15, 183, 301,302

drafting system 6, 181draftsmen 155, 235legal drafting 12, 20, 148, 156,

235, 236, 286legal draftspersons 12, 260

easification 4, 188, 286enforcement 38, 55, 56, 58, 80, 87,

96, 103, 161, 168, 171, 177, 179,180, 212–214, 231, 236, 237, 269,280–283, 291, 298, 299, 300, 303,311enforce 9, 38, 97, 99, 102, 169,

298evidence 11, 24, 40, 46, 76–80, 82,

90, 103–105, 113, 114, 129, 131,134, 162, 178, 181, 183, 187, 189–191, 194, 195, 225, 226, 228, 229,234, 248, 280, 286, 300, 303, 310,312, 325evidenced 191, 280, 310, 325evidencing 191evident 200, 216, 222, 236, 248,

271, 272, 280evidential 87evidentiality 190evidentiary 78

exclusion 182, 218, 219, 269, 271exclude 39, 91, 138, 180, 276,

292, 323

Legal 16 index 12/19/07, 5:22 PM335

336 INDEX

exclusively 103, 247exclusionary 114

genre 4, 5, 9, 10, 12–15, 19, 20, 27,128, 182, 191, 200, 261, 278, 280,284, 286, 310, 316critical genres 128cultural genre 14generic integrity 7, 10–12, 14,

15, 18–20, 127, 186, 191, 286genre-based approach 284legal genres 5, 9, 12, 20, 200,

280, 316legislative genres 4, 10professional genres 9, 191statutory genres 20

harmonization 20, 23, 24, 26, 27,73, 201, 224, 226, 232, 247, 248,249, 256, 278, 291, 304–306harmonize 15, 249harmonized 249, 314harmonizing 249, 314

hearing 43, 60, 71, 80, 89, 92, 95,115, 181, 213, 225, 226, 230, 295Hearings 25, 40, 41, 44, 89, 91,

95, 96, 99–103, 229, 267

ICCA (International Council forCommercial Arbitration) 184Rules of Arbitration 25, 99,

294ICC (International Court of

Arbitration) 25, 99, 292, 294illocution 208

illocutionary device 203illocutionary force 186, 204,

208, 211, 322indeterminacy 20, 21, 145–147,

149–157, 159, 163, 164Indeterminate 146, 149, 150,

157, 282ISO (International Organization for

Standardization) 326

institution 35, 45, 112, 133, 152,180, 206, 233, 246, 294arbitral institution 45, 206, 233institutional arbitration 64institutional communication 8institutional procedural rules 26,

291, 293institutional rules 75, 106institutionalised judgment 191semi-institutionalized 39

integrity 4, 7–12, 14, 15, 18–20,127, 186, 191, 286generic integrity 7, 10–12, 14, 15,

18, 19, 20, 127, 186, 191, 286interdiscursivity 11, 129

interdiscursive 138, 139interdiscursive information 139

interpretation 3–7, 9–11, 21, 23, 26,27, 38, 46, 47, 49, 53, 56, 95, 114,118, 127–130, 132, 133, 135, 136,138–141, 146, 148–151, 153, 156,163, 164, 169, 170, 173, 176–179,207, 211, 213, 214, 222, 231, 244,245, 247, 249, 261, 263, 264, 285,286, 295–297, 300, 302, 304interpret 6, 8, 128, 136, 153,

217, 233, 285, 301interpretative 5, 11, 27, 157,

163, 164intertextuality 11, 129, 282

Intertextual 138, 139, 157, 191,241, 242, 282

judgement 56, 59, 62, 177, 178,231, 272court judgment 55, 272fair judgment 36judicial judgement 56judge 22, 36, 41–43, 54, 56, 60,

62, 63, 65, 68, 112–115, 118,119, 121, 135, 139, 140, 142,143, 145, 173, 175–178, 195,224–226, 235, 242, 272, 292,312

Legal 16 index 12/19/07, 5:22 PM336

INDEX 337

juridical 159, 238jurist 224, 226, 229

jurisdiction 7, 9, 10, 14, 19, 26, 27,38, 39, 47, 53, 56, 59, 60, 66, 73,75, 78–80, 82, 90, 91, 92, 95, 98,102, 103, 143, 156, 164, 167, 169,176, 179–182, 203, 208, 210, 213,219, 228, 243, 244, 266, 279, 291,295, 301, 302, 322–324jurisdictional 9, 10, 23, 140,

276, 279, 324

lawsuit 54, 60, 62, 65, 83, 280legislation 4, 6–9, 15, 23, 27, 42,

57, 75, 92, 94, 96, 128, 136, 203,207, 221, 222, 224, 232, 233, 235,241, 247, 249, 282, 295, 296, 301,302, 311, 313, 314, 316, 321–324legislative 3–7, 10–12, 16, 21,

22, 27, 128, 129, 136, 138, 140,141, 145, 153, 155, 156, 164,188, 206–208, 217, 238, 240,295–297, 300–302, 309–311,317, 322

legislators 3, 4, 260, 296, 314legislature 78, 136, 203, 314

lexis 23, 189, 234, 247, 311, 319,322lexical 23, 163, 181, 184, 187,

200, 234, 246, 247, 283, 309,317, 319, 320, 325

lexical marker 163lexicalised 184lexicogrammar 5, 19, 138, 187,

191, 312litigation 21, 22, 24, 25, 53–57, 59,

61–63, 68, 76, 78, 80, 82, 83, 85,88, 109, 112, 116, 139, 140, 195,197, 227, 231, 265, 272litigant 85, 88, 112, 129, 130,

133, 134, 136, 137, 210, 243litigate 111litigation court 62, 63litigation procedure 57, 62, 68

litigation process 22, 62, 116litigative 116non-litigation 55

mediation 22, 25, 53–55, 57, 59–61, 62, 65, 71, 72, 80, 82, 89, 90,96, 112, 226, 280mediated 37, 116Mediation procedure 71mediation process 71, 72, 80mediator 57, 61, 62, 71, 72, 82,

112mediator-adviser 61unmediated 12

multi-cultural 22, 25, 48multidimensional 10multilingual 7, 10, 11, 26, 27, 127,

291–293, 304bilingual 294, 295interlingual influence 248monolingual 5multilingual instrument 26, 291,

304multilingual standard clauses

293multilingualism 26, 296plurilingual 296

multinomials 17–19, 23, 132, 136,175, 247, 285, 286Multinomial expressions 23,

175, 247

negotiation 9, 11, 21–23, 55–57,60, 61, 66, 106, 109, 112, 145,148, 153, 154, 158, 164, 227, 235,248, 286conciliatory negotiation 60contract negotiation 106negotiate 6, 9, 77, 111, 116,

284negotiated 39negotiating 230, 280, 284, 286non-binding negotiation 60settlement negotiation 227

Legal 16 index 12/19/07, 5:22 PM337

338 INDEX

nominalizations 23, 199, 325binominal 311, 314, 323nominal 157, 311pronominal 211, 214, 215, 218,

219

performatives 185, 186, 206performative 183, 184, 186, 201,

204, 206, 207, 238performative formula 186performative functions 186,

238Performative lexical verbs 184performative verbs 201, 204,

206,207procedure 8, 11, 13, 23, 26, 27, 37,

45, 46, 48, 49, 51, 54, 55–58, 60,62–66, 68, 70, 71, 80, 81, 96, 98,109, 110, 114, 133–135, 139, 143,146, 153, 154, 157, 161, 162, 182,201, 203, 215, 222, 224–226, 228,229, 232, 234, 237–240, 242, 243,247, 249, 255, 257, 260–262, 264–272, 278, 280–283, 286, 293, 301,317, 319–321arbitral procedure 46, 161, 162,

201, 237, 240, 319, 321arbitration procedure 13, 23, 54,

65, 68, 71, 135, 139, 222, 242,243, 249, 255, 257, 260–262,281, 282, 293

challenge procedure 134, 135civil procedure 54, 68, 98, 154,

182, 232, 240, 242, 257, 264,266, 271, 272, 281–283

commercial procedures 109conciliation procedure 62–65,

68court procedure 60, 65, 229law procedure 225, 228, 260litigation procedure 57, 62, 68mediation procedure 71procedural 13, 21, 23, 26, 39,

56, 59, 66, 70, 71, 81, 87, 88,

95, 96, 102, 117, 122, 153, 162,163, 182, 215, 224, 226, 228–230, 249, 256, 259, 260,262–264, 267, 269, 270, 276,279, 281, 282, 284, 291–294,312, 322, 323

procedural justice 56, 59, 215procedural rules 13, 21, 26, 39,

64, 71, 95, 224, 256, 260, 262,263, 264, 267, 291–294

procedural terms 322resolution procedures 80settlement procedure 37, 68

proceedings 22–24, 26, 40, 43–45,50, 58, 61, 63–72, 75–78, 80, 81,83–88, 91–102, 105–107, 109,117, 118, 122, 134, 137, 142, 156–159, 161, 164, 167–174, 176–180,204, 210, 212, 214, 222–227, 230,231, 234, 237, 240, 246, 249, 260,261, 263–267, 269, 271–273, 282,291, 292, 296, 303, 306, 311, 317,320, 321, 324arbitration proceedings 22, 40,

64–67, 69, 71, 72, 78, 80, 81,85, 86, 88, 91, 92, 94, 95, 97,107, 109, 117, 122, 169, 171,172, 179, 180, 188, 223, 224,230, 231, 249, 263–267, 311,320, 321

arbitral proceedings 45, 58, 61,63, 64, 67, 69, 70, 76, 84, 87,88, 91, 92, 94, 95, 97, 98, 106,118, 134, 137, 157–159, 161,204, 212, 214, 227, 234, 237,240, 246, 303, 320, 321

civil proceedings 77, 80conciliation proceedings 63, 65,

68, 94, 265, 267, 269consultation proceedings 263–

265, 267enforcement proceedings 96,

179, 212judicial proceedings 92, 95

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INDEX 339

legal proceedings 77, 78, 99,172, 317

oral proceedings 44settlement proceedings 64

qualification 4, 8, 9, 11, 16, 19, 82,83, 97, 137, 153, 155–158, 161,162, 164, 172–174, 176, 210, 234,260, 267conditional qualification 156,

162operational qualification 157,

158, 161, 162, 164qualifier 21, 156, 157, 163, 164

reason 5, 56, 63, 64, 75, 77, 84–86,97, 103, 106, 118, 119, 134, 137,139, 143, 145, 149, 151, 153, 158,160, 162, 163, 172, 173, 175, 180,182–189, 191, 193–196, 204, 208,210–214, 223, 224, 226, 242, 243,271, 272, 300, 319, 324reasonable 45, 85, 93, 115, 118,

121, 136, 176, 190, 312reasonableness 121reasonably 4, 84, 85, 90, 93, 97,

312reasoned award 117, 182, 185,

190reasoning 4, 89, 150, 162, 185,

312register 182, 200, 234, 238

bureaucratic registers 234legal register 200

rhetoric 42rhetorical strategies 199, 200,

202, 286

simplification 3, 4socio 5–12, 23–25, 127–129, 138,

140, 151, 153, 164, 221, 244, 248,256, 257, 277, 279, 285socio-cultural 5, 6, 11, 23, 24,

129, 164, 221, 244, 248, 277, 279

socio-economic 244socio-legal 153, 277socio-political 6–12, 127, 128,

138, 140, 256, 257socio-pragmatic 129, 138, 140,

151statute 4–6, 13, 15–20, 23, 62, 78,

146, 148, 150–152, 154, 155, 159,163, 167, 182, 183, 186, 199, 200,201, 206–208, 217, 221, 235, 247,256, 262–264, 268, 314, 316, 318,319arbitration statutes 15, 154, 318law statutes 235legal statutes 151national statutes 16–19, 167

terminology 27, 53, 182, 231, 303,309–314, 316–320, 323, 325bijural terminological research

310legal terminology 231, 311, 313,

314, 320non-terminology 311specialised terminology 311terminological 23, 27, 202, 205,

212, 233, 247, 295, 302, 310–312, 316, 318, 323–325

terminological issues 27, 310, 325terminological unambiguity 23terminologies 310, 319

testimony 90, 100, 104, 224, 226,228signed testimony 228written testimony 228

translation 4, 6–8, 12, 13, 18, 20,24, 26, 27, 40, 41, 53, 54, 150,231, 232, 248, 291–297, 302, 303,305, 310, 312–314, 316–318, 320,321–323, 325, 326legal translation 4, 7, 27, 150,

316, 321translate 6, 7, 292, 295, 302,

314, 316

Legal 16 index 12/19/07, 5:22 PM339

340 INDEX

translated 11, 12, 14, 59, 230,294, 295, 303, 310, 313, 314,316, 318, 319, 322, 323

translating 297, 303, 315, 316,322

Translation of institutionalprocedural rules 26, 291

translation of legal documents26, 291

translation of legal genres 12translation of legal intentions 6translation of national arbitration

laws 26, 291translational equivalents 27, 321,

323, 326translator 3, 8, 10, 12, 26, 27,

234, 293, 295, 296, 301, 302,310, 316–319, 321, 322, 325

UNCITRAL 10–12, 14–17, 24, 26,39–41, 47, 53, 79, 81, 87, 91, 97,100, 101, 102, 117, 119, 122, 127,129, 130, 154, 162, 167, 169, 171,180, 200, 201–207, 209–219, 224,226, 227, 232, 236, 238, 239, 245–249, 260, 278, 291, 299, 300, 302,305, 311, 314, 317, 319, 320, 321,323, 324

UNCITRAL approach 249

UNCITRAL Arbitration ModelLaw 11

UNCITRAL Arbitration Rules39, 100, 101, 102, 180, 232,245, 246

UNCITRAL Model Law 10, 12,16, 17, 24, 26, 79, 81, 87, 97,102, 117, 119, 122, 129, 130,154, 162, 167, 169, 171,200.201, 224, 245, 247, 291,299, 302, 305, 311, 314, 317,319, 320, 321, 323, 324, 327

UNCITRAL Rules 14, 39–41, 47,79

UNCITRAL texts 227, 236, 238,239, 247, 248

utterance 145, 147, 148, 186, 187uttered 145

vagueness 16, 20, 21, 145–158,162, 164, 309semantic vagueness 151, 154vague 21, 146, 148–150, 152–

154, 158, 162–164vague expressions 21, 147, 148,

153, 163, 164vague language 146, 158, 165vague qualifier 163vaguely 234, 312

Legal 16 index 12/19/07, 5:22 PM340